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Report Outlines Problems in LGBT/HIV Criminalization

by Winnie McCroy

EDGE Editor

Wednesday June 11, 2014

Lesbian, gay, bisexual, and transgender, or LGBT, people and people living with HIV/AIDS (PLWHAs) face sweeping discrimination at all stages of the criminal legal system -- including policing, adjudication, and incarceration. A new report from Columbia Law finds that policy changes are needed to address the criminalization of LGBT people and people living with HIV.

"Each year in the U.S., thousands of lesbian, gay, bisexual, transgender, Two Spirit, queer, questioning and gender non-conforming (LGBT) people and people living with HIV come in contact with the criminal justice system and fall victim to miscarriages of justice," reads the new report, A Roadmap for Change: Federal Policy Recommendations for Addressing the Criminalization of LGBT People and People Living with HIV.

This is one of the first reports of its kind to offer comprehensive federal policy recommendations to address the cycles of criminalization and discriminatory treatment faced by LGBT people and PLWHAs. Co-authored by Catherine Hanssens, Aisha C. Moodie-Mills, Andrea J. Ritchie, Dean Spade and Urvashi Vaid with input from more than 50 legal, advocacy, and grassroots organizations working on LGBT and criminal justice policy, the report provides an extensive outline of policy measures that federal agencies can adopt to address discriminatory and abusive policing practices, improve conditions for LGBT prisoners and immigrants in detention, decriminalize HIV and prevent LGBT youth and adults from coming in contact with the system in the first place.

"Existing research indicates that LGBTQ people and PLWH are overrepresented in all aspects of the penal system said Ben Jealous, former president of the NAACP and CAP Senior Fellow, who contributed the preface for the report. "This roadmap contains recommendations for federal policy change that would represent important steps toward preventing and addressing the impacts of the crisis of mass incarceration on LGBTQ people -- a crisis that is too often ignored, even by people of good conscience."

CeCe McDonald, a transgender woman who was released from prison earlier this year after serving 19 months in a men's prison for defending herself against a racist and transphobic attack, contributed the foreword to the report.

"Police officers use many stereotypes of black trans people to dehumanize me, such as assuming that I am a sex worker," wrote McDonald. "People of color and trans people are seen as 'unfit for society,' and are therefore targeted by our justice system."

A whopping 73 percent of all LGBT people and PLWHAs recently surveyed have had face-to-face contact with police during the past five years, according to a recent study by Lambda Legal. For LGBT people of color, more than one-third of these interactions featured some form of harassment or abuse. Five percent of the respondents also report having spent time in jail or prison, a rate that is markedly higher than the nearly 3 percent of the total U.S. adult population who are under some form of correctional supervision -- jail, prison, probation, or parole -- at any point in time.

"Legal equality has not translated into lived equality for LGBT people, especially poor people and people of color," said Spade, co-author and visiting professor at Columbia Law School's Center for Gender & Sexuality Law. "There is still little justice for LGBT people such as CeCe McDonald and countless others who are driven into the criminal legal system by pervasive poverty and systemic discrimination in the distribution of life chances."

"The policing of gender and sexuality pervades law enforcement and the operation of courts and the penal system, often in tandem and in service of racial profiling, targeting of homeless and low-income communities, and mass incarceration of people of color," echoed Ritchie, coordinator of Streetwise & Safe and co-author of the report. "Addressing discriminatory policing and punishment of LGBT people, and particularly LGBT people of color, should be at the center of the administration's LGBT and criminal justice policy agendas. These are LGBT issues because they affect LGBT lives."

A unique aspect of this report was this collaborative development. The Center for Gender & Sexuality Law and the report's co-authors convened activists, policy advocates, lawyers and grassroots organizations in May 2013 and consulted widely with many others to develop this report, including currently and previously incarcerated individuals.

"This report represents an innovative and unprecedented collaboration among groups that normally do not work together and serves as a reminder that while tactics may occasionally differ, our end goal is ultimately the same: to end the needless criminalization of LGBT people and PLWH," said Vaid, co-author and publisher of the report at Columbia Law School's Center for Gender & Sexuality Law.

The 84-page publication was published by Columbia University's Center for Gender and Sexuality Law (CGSL), and was cowritten by staff from the CGSL, the Center for American Progress, the Center for HIV Law and Policy, and Streetwise and Safe. It includes policy recommendations in the following six areas:

Reforms in policing and law enforcement to reduce discriminatory profiling and policing practices, unlawful searches, false arrests, and discriminatory targeting of LGBT people and people living with HIV;
Reforms in prisons and detention centers to address issues associated with incarceration, including and beyond the implementation of the Prison Rape Elimination Act (PREA), a federal law passed in 2003 to protect prisoners from sexual assault;
Immigration reforms to reduce exclusion, profiling, detention, and deportation of immigrants who are LGBT and/or living with HIV;
Reforms to address the criminalization of LGBT youth, including the dismantling of what the report calls "the school-to-prison pipeline for LGBT youth";
Reforms to address HIV criminalization, including measures to modernize current laws, practices, and policies that criminalize HIV exposure, nondisclosure, and transmission; and
Reforms to address the "drivers of incarceration" -- factors such as high rates of homelessness and poverty, low levels of education, and high rates of family and community rejection that can place LGBT people and people living with HIV at risk for incarceration and its negative consequences.

"Justice continues to be elusive and conditional for LGBT people and PLWH due to a range of laws and policies that are used to dehumanize, victimize, and criminalize them because of their sexual orientation, gender identity, or HIV status," said Moodie-Mills, co-author of the report and Senior Fellow at the Center for American Progress. "Even though LGBT equality has gained momentum, it remains unevenly distributed and incomplete, so it is critical that policy makers continue the work to ensure that LGBT people and PLWH are treated fairly."

Winnie McCroy is the Women on the EDGE Editor, HIV/Health Editor, and Assistant Entertainment Editor for EDGE Media Network, handling all women's news, HIV health stories and theater reviews throughout the U.S. She has contributed to other publications, including The Village Voice, Gay City News, Chelsea Now and The Advocate, and lives in Brooklyn, New York.